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May 21, 1985

CITY OF NEW YORK, POLICE DEPARTMENT OF THE CITY OF NEW YORK, MICHAEL CASSIDY, CARL DANIELS, and ROBERT McGUIRE, as Commissioner of Police Department of the City of New York, Defendants

The opinion of the court was delivered by: STEWART


STEWART, District Judge:

Plaintiff Kevin Anderson moves for summary judgment against defendants the City of New York ("NYC"), the New York City Police Department ("NYPD"), the Commissioner of the Police Department, Robert McGuire ("the Commission") and New York City Police Detectives Michael Cassidy and Carl Daniels. Defendants cross-move for summary judgment on the entire complaint, or alternatively, on behalf of the municipal defendants.

 We find that plaintiff has stated a cause of action under 42 U.S.C. § 1983, but is not entitled to summary judgment because of questions of fact. Defendants' motion for summary judgment is denied with respect to the municipal defendants, specifically NYC, NYPD and the Commission. *fn1" Summary judgment is granted, however, on behalf of the individual officers, Cassidy and Daniels.

 The background of this case is essentially undisputed. On January 1, 1977, the police arrested Anderson for robbery in the second degree. *fn2" In accordance with the usual procedures, his fingerprints and photographs were taken. The case was dismissed on January 29, 1977 for failure to prosecute. Pursuant to N.Y. Crim. Proc. Law § 160.50 *fn3" ("section 160.50"), Judge Herbert Shapiro signed an order on April 14, 1977, calling for the return of all photographs, negatives, fingerprints and palmprints of the defendant. *fn4"

 The photographs were not returned. On May 19, 1977, while investigating a homicide, the police displayed to a witness a January 1977 photograph of the plaintiff retained in violation of Judge Shapiro's order. The trial judge at Criminal Term, Justice Sullivan, denied suppression of the identification after analysis of the statute requiring the return of the photographs. In interpreting the statutory requirement that materials be returned "forthwith," Justice Sullivan held that "the approximately five week interval between the court order of April 14, 1977 and the police display of the photo on May 19, 1977 was a reasonable period within which the sovereign could comply with the court order." People v. Anderson, 97 Misc.2d 408, 413, 411 N.Y.S.2d 830, 834 (Sup. Ct. Bronx County 1978). Given that interpretation, the court found no violation of the court order, nor any "taint in the identification procedures used." Id. at 415, 411 N.Y.S.2d at 834. The court went on to express its view that the retention and use of the photograph, even if it had violated the statute, would not have been a denial of due process or an abridgement of any fourth amendment right. Lastly, the court also stated that even if it were to assume a statutory violation of constitutional proportions, the ultimate the totality of circumstances, the identification was unnecessarily suggestive. Analyzing the facts surrounding Anderson's identification, the court found "the photo and line-up identification procedures were not unnecessarily suggestive." Id. at 415, 411 N.Y.S.2d at 835.

 After trial on the homicide charge, Anderson was acquitted by a jury, and Justice Sullivan entered another order pursuant to section 160.50 calling for release of all photographs, negatives, fingerprints and palmprints of the defendant relating to the murder charge. According to plaintiff, the City has complied with this second expungement order. During the course of the 1977 murder proceedings, some fingerprints, photographs and negatives from the January 1977 robbery arrest were returned to the attorney who had represented Anderson at his robbery trial. Those photographs were forwarded to Mr. Kronick, Anderson's present attorney, who also represented him with respect to the 1977 murder charge. The Assistant District Attorney in charge of the 1977 murder prosecution also acknowledged that the City had complied with Justice Shapiro's order regarding the photographs taken in connection with the 1977 robbery charge.

 Nonetheless, on June 11, 1981, while investigating a robbery and attempted murder, Detectives Cassidy and Daniels displayed one of the January 1977 photographs to two witnesses, Tamika White and Leola Gray. Plaintiff contends that as a result of that display, he was placed in a line-up on June 14 and identified by ms. Gray as the perpetrator of the robbery under investigation. Ms. White viewed the same line-up, but could not make a positive identification. Moments later, however, saying that she had made a mistake and had been scared, she identified plaintiff. Anderson was arrested and taken into custody.

 In a Wade hearing in connection with this trial, the court denied suppression of the line-up identification of the defendant by White and Gray, as well as their subsequent in-court identification. See People v. Anderson, Indictment No. 1997/81, slip op. Dec. 3, 1981 (Sup. Ct. Bronx County) (McNab, J.). With respect to the pretrial line-up identification, Justice McNab concluded that there was no "exploitation of the antecedent illegality." Id. at 12 (citing Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); People v. Irving Pleasant, 54 N.Y.2d 972, 430 N.E.2d 905, 446 N.Y.S.2d 29 (1981)). We quote from the state court opinion as to how the police used the retained photograph:

[A]s testified to by Detective Carl Daniels, Miss White selected defendant Anderson's photo in the 48th precinct from a tray, or drawer containing some 1500 photos, under what were otherwise totally proper and unsuggestive circumstances. Only then was Anderson's photo given to Miss Gray to view as part of a group, or pile, of "lookalike", numbering ten in all. In no way did the police make any effort to exploit the illegally retained photograph of Kevin Anderson and "sneak" it before Miss White.

 People v. Anderson, supra, Indictment No. 1997/81, slip op. at 12-13.

 Following the analysis set forth in Irving Pleasant, supra, 54 N.Y.2d 972, 430 N.E.2d 905, 446 N.Y.S.2d 29, the court found that with respect to the in-court identification, both witnesses had an independent source for identifying Anderson apart from the use of the photograph. Specifically, White and Gray, both prostitutes who were working in the area at the time in question, observed Anderson driving a stationwagon during a two or three hour period immediately before the time of the alleged crime. Both spoke to the occupants of the car, and each testified that Anderson had "dated" them, or been their "trick". As Justice McNab stated:

Lending additional credence to this independent source is Miss White's testimony that upon identifying defendant's photo at the 48th precinct, she exclaimed "That's the driver" and Miss Gray's even more pointed response, actually naming the suspect, i.e., "This is Kevin Anderson," upon identifying that same photograph.

 People v. Anderson, supra, Indictment No. 1997/81, slip op. at 11.

 While denying suppression of the identification testimony, Justice McNab made a few sharp comments about the retention of the photograph. After observing that Anderson was the same defendant who first litigated the issue of an identification based on an illegally retained photograph, Justice McNab stated that

[T]his Court simultaneously became aware that the photograph of defendant Anderson, People's Exhibit No. 7 in evidence, . . . is in fact the very same photograph which was at issue before Justice Sullivan some three years ago. As the People have conceded, the continued retention of this photograph by the police for such an excessive length of time is totally inexcusable and might very well render the police subject to a possible civil action.

 Id. at 10. Toward the end of the opinion, Justice McNab further commented:

[L]et this Court emphasize that in permitting this evidence to be received at trial, it is in no way condoning the plainly inept and deficient police conduct demonstrated herein. The police are to be on notice that the type of sloppy and unintelligent work exhibited here will ultimately leave some Court, at some future time, no choice but to suppress what may otherwise be perfectly valid evidence."

 Id. at 15.

 In connection with the above charges, plaintiff was arrested and incarcerated in lieu of bail for a period of six months. At trial, he was acquitted of all but one charge. The jury was unable to render a verdict on that remaining charge, which involved a lesser included offense of a charge upon which the jury had ...

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